SPEECH 


or 


HON. WADE HAMPTON. 


OF SOUTH CAROLINA, 


In the Senate of the United States, May 13, 1880. 


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The Senate having under consideration the resolution reported by the Commit- 
tee on Privileges and Elections relative to the seat held by WILLIAM PitT KELLOGG 
as Senator from the State of Louisiana— 

Mr. HAMPTON said: 

Mr. PRESIDENT: As it is impossible for me to stand for any length 
of time, I must appeal to my brother Senators not to make me stand 
longer than is necessary by interruptions. 

Mr. President, it is with the greatest reluctance that I approach 
this question, and I do so only from a sense of duty. Upon all ques- 
tions involving legal points, I have been content to follow those here 
who are ornaments to the profession of the law and whose opinions 
are of recognized authority throughout the whole country. But on 
the matter under consideration such is the wide difference of opinion 
prevailing among some of the ablest jurists in this body that the un- 
professional mind seeks in vain for light to guide it to a correct judg- 
ment. Amid this great and fundamental diversity of opinions among 
the eminent members of the legal profession a layman like myself may 
well be excused for entertaining grave doubts as to the settled prin- 
ciples of law which should determine this important issue, and he 
surely cannot be blamed if, disregarding the mere technicalities of 
law, he strives earnestly to conform his action to the fixed and immu- 
table principles of justice. I can find in this case no other guide for 
my action, and should it lead me astray I shall at least have the con- 
solation of knowing that I have erred only by following my sincere 
and honest convictions of duty. I have not the ability to discuss the 
delicate and intricate points of law involved in this case. I can only 
cite such well known authorities as are accessible to all and to which 
my attention has been directed. But while, unfortunately for my- 
self, I cannot speak as one having authority, I may perhaps on that 
very account be able to weigh more impartially all the evidence ad- 
duced and to form a judgment unbiased by professional pride or un- 
prejudiced by partisan feeling. I recognize painfully in my own case 
how difficult it is to throw off the shackles forged by partisanship ; 


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to oppose the mandates of party, or to rise superior to that spirit 
sectionalism which has so often exercised its malign influence on 
ters which have come before us. Pha 
I appreciate as fully as any one the necessity of party organizations, 

and I acknowledge to their fullest legitimate extent the hae ad 
of party fealty. But there are sometimes questions ich we 
are called to act which each man must determine for himself; when 
his only guide must be his conscience and his sense of right. Such 
a question is the present one; one as grave, as important, as far- 
reaching in its consequences as ever came before this body, and one 
which demands all the prudence, all the wisdom, all the 
which should belong to this the highest as well as the most consery- 
ative legislative tribunal in this country. We cannot afford,in a — 
matter of such vital consequence, to draw party lines or to be gov- 
erned by sectional prejudices. We are here as representatives of 
coequal States, and in judging of the rights of any of these State 
are bound to do equal and exact justice to all, while we protect invio- 
late the rights and privileges of our colleagues, Any proceeding in 
this Chamber that could be considered as at all revolutionary or even 
irregular would shock the sentiment of the whole country, and would 
shake the settled foundations of the Government itself. Wecannot — 
tamper rashly with the principles, the rules, the traditions even which 
have obtained in the organization of this angust body. Some may 
treat these fears as groundless while they boldly seek to establish new 
precedents, but I seek safety and repose in clinging to the old, for I~ 
realize how dangerous innovations may become. ; 

I’ve seen an idiot clap his hands, and shout 

To see a tower, like yon, stoop to its base, 

In headlong ruin ; while the wise looked round, 

And feartol sought a distant stand to watch, 


What fragment of the fabric next should follow ; 
For when the turrets fall, the walls are tottering. 


I do not wish to see a single one of the muniments of our rend: - 
system of government broken down, or even touched by a rash ie 
It is needless for me to say, Mr. President, that I do not in the slight- 
est degree impute to the distinguished gentlemen who presented this ~ 
report, or to those who have so ably advocated its adoption, one sel- 
fish or unpatriotic motive. Not for one instant do I doubt the sincerity 
of their convictions or the honesty of their purpose. Most 

do I accord to them what I claim for myself, and it is therefore a 
matter of profound regret to me, that Iam impelled to differ wi 
them in the conclusions at which they have arrived. It is pee 

painful to me to express this difference of opinion, because it 

me on this question from so many of my party associates, in whose 
integrity, patriotism, and ability I have such confidence; but I trust 
that they will do me the justice to recognize that in the discharge of 
this painful duty Iam actuated by the same sense of right that in- 
spires them. It would, perhaps, be sufficient for me to announce my 
dissent from the resolutions offered by the majority of the committ 

but a proper consideration for the opinions of my constituents and 

my associates prompts me to give the reasons which control my action. 
These shall be stated in as brief a manner as possible, and more in the 
shape of conclusions than of argument. : 

The credentials of Mr. KELLOGG as Senator-elect from Louisiana 
were presented to the Senate on the 20th of January, 1877, and were 
referred to the Committee on Privileges and Elections in March of 
that year. Mr. Spofford’s credentials were referred to the same com- 


‘ 


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mittee in October. By consent of parties the committee considered as 
evidence in the cause all the testimony taken by what are known as 
the Howe committee, the Morrison committee, and the Field commit- 
tee, as also Mr. Sherman’s report on the acts of the returning board, 
together with the journals of the Nicholls and Packard legislatures. 
On the 25th October, 1877, the Senate passed the following resolution : 

Resolved, That the Committee on Privileges and Elections on the contested cases 
of WILLIAM Pitt KELLOGG and Henry M. Spofford claiming seats as Senators from 
the State of Louisiana, and whose credentials have been referred to said commit- 
tee, be authorized to send for persons and ey and administer oaths with a view 
of enabling said committee to determine and report upon the title respectively on 
the merits of each of said contestants to a seat in the Senate. 


There can be no doubt but that this committee has the inherent 
power to determine and report upon the merits of all cases referred 
to it. But the Senate itself made it mandatory upon the committee 
in this case to do so by a formal resolution as if to avoid all misappre- 
hension and to make a final adjudication of the titlein issne. Shortly 
before the committee had closed its investigation Mr. Spofford ap- 
plied for further time to adduce additional testimony upon certain 
points in the case. The committee refused to grant that application 
and embodied their reasons for such refusal in the following resolu- 
tion : 

Resolved, That it is the sense of this committee that the matters proposed by 
antes Spofford as far as material have beén fully covered either by the BAGaaton 
of Mr. KELLOGG or the evidence already before the committee. 

I make no comment on this action of the committee except to ex- 
press the opinion that this ruling did injustice to Mr. Spofford. But 
it cannot be denied that it was competent for the committee to de- 
termine whether it should suspend its investigation of the case to 
enable a contestant to adduce cumulative testimony upon any given 
point. I apprehend that this power inheres in every tribunal au- 
thorized to hear and determine a cause. If it were otherwise a liti- 
gant so disposed might prevent a final adjudication of his cause by 
stretching out the line of his testimony indefinitely. Should a com- 
mittee of this body abuse this power, an appeal can be taken to the 
Senate sitting as a court to judge of the qualifications of its members. 
The Senate in such case must judge of the sufficiency of the evidence 
as the court of last resort, and its decision thereon cannot, in my 
opinion, be reviewed without doing violence to well-settled legal 
principles and establishing the dangerous doctrine that the tenure of 
a member of this hody is dependent upon the will of the majority 
whenever any party pleases to litigate his title. 

The committee reported the case back to the Senate on the 26th 
November, with the following resolutions : 

Resolved, That WILLIAM Pirr KeLioae is upon the merits of the case entitled to 
a seat in the Senate of the United States from the State of Louisiana for the term 
of six years, commencing on the 4th March, 1877, and that he be admitted thereto 
upon taking the proper oath. 

Resolved, That Henry M. Spofford is not entitled to a seat in the Senate of the 
United States. 

The minority of the committee also made a report, declaring that 
in their judgment Mr. KELLOGG was not entitled to a seat in the Sen- 
ate and that Mr. Spofford was. 

The discussion that ensued on these resolutions was protracted and 
exhaustive. It may he asserted with confidence that every class of 
fact and every matter of law now urged to unseat Mr. KELLOGG was 
either embraced in the minority report or was pressed upon the atten- 
tion of the Senate during that heated and long debate. On the 30th 


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November the Senate by unanimous agreement came to ayoteonthe 


Spofford-Kellogg case. This was not an agreement to vote upon 
some mere interlocutory motion in the case, but to decide it upon its 
merits; to make a final adjudication upon the title to the seat in 
question. There was no reservation of a right of further contest ; 
‘but, on the contrary, when a proposition to that effect was made on 
behalf of Mr. Spofford by the distinguished Senator from Georgia 
who dissented from the report of the committee, it was promptly voted 
down. The Senate adopted the resolutions just cited, anno 
thereby as its deliberate judgment that Mr. KELLOGG was enti 

to a seat as Senator from Louisiana. 

Yet, in face of this action it is now contended that this judgment, 
so exact in form, and so clear in its expression of the intent of the 
tribunal which rendered it, does not conclude this case or stop li 
tion in regard to it. If this case is to be heard again on its merits, 
what is to prevent its being reheard at some future session, and as 
long as the unsuccessful contestant shall allege that he has discoy- 
ered new evidence, or shall assail the recorded judgment of the Sen- 
ate as unjust? 


For sixteen years the cause was spun, 
And then stood whereit first begun. 


In all questions of this character there must be some point at which 
a finality can be reached or we shall have permanent chaos in place of 
regulated and established order, and it seems to me that this is one 
of those doubtful and perplexing cases which should be determined 
by that reason which, as Coke has justly said, “is the spirit of the 
’ law.” It has been denied here that on questions of this sort the Sen- 
ate acts in a judicial capacity, but this assertion can scarcely be sus- 
tained in view of the high authorities to the contrary. 

In Cooley’s Constitutional Limitations the following language is 
found, (section 133:) 


In determining questions me pare contested seats the House will exercise 
judicial power, but generally in accordance with a course of practice which has 
sprung from precedents in similar cases. 


The great Chancellor Kent expresses the same views in distingt, 
emphatic language: 

As each House acts in these cases in a judicial character, its decisions, like the 
decisions of any other court of justice, ought to be regulated by known principles 


of law, and strictly adhered to for the sake of uniformity and certainty.—Oommen- 
taries, volume 1, page 235. 


It will thus be seen that the highest authorities on constitutional 
questions declare that the Senate does sit at times asacourt. If they 
are correct in the views expressed it follows that when so sitting the 
Senate is bound by those legal principles and settled rules of practice 
that govern other judicial tribunals of last resort. It follows also as 
a logical sequence that the Senate does not possess the legal power 
to reopen any case which has been decided on its merits, on the pe- 
tition of a contestant therein, unless it shall clearly appear that the 

arty against whom its judgment was rendered was prevented 4 
ratd practiced upon him by the successful party from presenting hi 
whole case for adjudication or exhibiting evidence which was mani- 
festly material in support of his claim. This view is sustained by 
all the reported precedents in the British Parliament, and in the elee- 
tion cases decided by both Houses of Congress, and by the uniform 
decisions of the Supreme Court of the United States. In a memora- 


5) 


ble case upon a petition for a rehearing of a question decided by the 
House of Lords in 1823, Lord Chancellor Eldon said: 

cee at the general interest, it is infinitely better that the matter should be 
here finally decided upon one hearing even if the decision is wrong. than that there 
should be a new litigation unknown to our proceedings, as to this matter of re- 
hearing, nor can any one say where it is to stop. In generalit is to be hoped that 
the decisions of the House are right; but whether right or wrong, it has been taken 
for granted that considerations of infinitely greater moment than the considera- 
tions which arise out of the particular mischief in particular cases have led this 
House to determine that where a matter has been heard between the parties at the 
bar, and the House has given its decision upon the merits discussed by those par- 
o. the Honse will not rehear the cause-——Shaw’s Scotch Appeal Cases, pages 432, 

Wells, in his authoritative work on the doctrine of res adjudicata, 
lays down the following propositions, as supported by both the Eng- 
lish and American authorities : 

The maxim that fraud vitiates every proceeding must be taken, like other gen- 
eral maxims, to apply to cases where proof of fraud is admissible. But when the 
same matter has been actually tried, or so in issue that it might have been tried, 
it is not again admissible ; the party is estopped to set up such frand, because the 

' judgment is the highest evidence and cannot be contradicted.— Section 499. 


Justice Cooley declares that— 


A decision once made in a particular controversy by the highest court empow- 
ered to pass upon it is conclusive on the parties to the litigation and their privies, 
and they are not allowed afterwards to revive the controversy in a new proceed- 
ing for the purpose of raising the same*or any other questions. <A party is es- 
topped from disputing the correctness of the judgment against him so far as the 
point directly involved in the case is concerned, whether the reasons on which it 
was based was sound or not, and even if no reasons were given therefor.—Consti- 
tutional Limitations, sections 47 and 48. 

The doctrine for which I am contending was enforced by the Sen- 
ate in the case of Fitch and Bright, Senators from Indiana, in 1859. 
The report adopted by the Senate in that case declares that— 

The judgment of the Senate then rendered is final and precludes further in- 
quiry into the subject-matter to which it relates. The decision was made by an 
authority having exclusive jurisdiction of the subject, and was judicial in its char- 
acter. 

On that occasion the Senate held that the matter was res adjudicata, 
although the parties who asked for a rehearing were not the former 
contestants but were new parties, whose application was supported 
by a joint memorial of the two houses of the Legislature of Indiana. 
Indeed, sir, this wholesome doctrine has never been departed from so 
far as I can learn, either by the British Parliament or by the Amer- 
ican Congress. It rests upon the sound legal maxim that “It is to 
the interest of the Republic that an end should be put to litigation.” 
The distinguished Senators from Louisiana and Missouri who have 
so ably and eloquently urged the adoption of the resolutions reported 
by the committee cite the case of Jumel vs. Johnson, decided by the 
supreme court of Louisiana, as supporting their views. With the 
utmost deference to their high ability I cannot concur in the con- 
struction placed by them on the decision of the courtin this case. It 
appears to me that the court recognizes the Nicholls government as 
one de facto, and the officers of this Government as holding only by a 
prima facie title. In pronouncing the opinion of the court in this 
case that eminent jurist, Chief-Justice Manning, used the following 
words: 

Itis manifest, then, that the respondent cannot put at issue the title of the relator 
to the office of auditor in this proceeding. * * * The issue thus attempted to 
be raised in this petition for removal is identical with that presented by the an- 
swer, namely, the title to the office of auditor, and we have seen that under no 
circumstances can the title to an office be inquired into by mandamus. * * * 


6 


But this does not prevent the respondent from inquiring into the rightfulness of 
the relator's title to his office in that form of procedure which the law has desig- 
nated for that purpose. 

In view of this language held by the chief-justice, I do not see how 
the opinion of the court decided the legality of the Nicholls govern- 
ment. That this government was the legal one I have never for a 
moment doubted; nor do J entertain a doubt that the court would 
have so decided had a proper issue been brought before it for its de- 
cision on this point; but as a matter of fact I submit that it did not 
so decide in the case cited. Inarecent decision of the Supreme Court 
of the United States, Mr. Justice Miller, who delivered the opinion of 
the court, used the following language, (United States vs. Throck- 
morton, 8 Otto, page 64:) 


In the same decree he uses even stronger language when he says— 
That the mischief of retrying every case in which the judgment or decree ren- 
dered on false testimony given by perjured witnesses, or on contracts or documents 
whose genuineness or validity was in issue and which are afte 
to be forged or fraudulent, would be greater by reason of the endless nature of the 
strife than any compensation arising from doing justice in individual cases. 

These authorities which I have cited are conclusive to my mind that 
in passing on election cases the Senate acts in a judicial capacity, and 
that when it decides such a case on its merits its action is final; it 
does not possess the lawful power to reverse or even review its action. 

In discussing this important subject I have only considered the ques- 
tion whether the Senate has the right, by a vote of the majority, to 
unseat a member who has been admitted by a deliberate decision of 
this body, expressed in the most authoritative manner. I have stu- 
diously avoided touching upon the question of mere political expe- 
diency. 

The issue involved is too grave, too solemn, too fraught with dan- 
ger to the whole country to allow any such degrading consideration 
to exercise its influence. I dare not trust myself to diseuss this mat- 
ter with reference to the parties involved, for fear that my ee 
would betray my reason and my sympathies would warp my jadg- 
ment. All these feelings, all these sympathies are with dan condilet- 
ant in this case. I know how great, how cruel have the wrongs 
inflicted on Louisiana. I have witnessed them in that unhappy State, 
and I have felt them in my own. But the storm which swept with 
such fury over those prostrate States has spent its force, and the dawn 
of a brighter day begins to light up their horizon. Let our people 
have but repose, and that blessed light, harbinger of peace and hope, 
will spread until it illumines with its glorious beams in noontide splen- 
dor our southern skies. It will as surely shine upon Louisiana as 
upon the rest of our southern land. I admit the great wrong that 
has been done to her people, and no one in this Chamber, or on her 
soil, would more willingly strive to rectify that wrong than myself, 
could I see the way to do so conscientiously. But I believe that we 
have not the power, the rightful power, to rectify that wrong. Time 
the great vindicator, he who mercifully heals wounds and sets all 
things right, can alone do this in the proper manner. It is a painfal 
reflection to me, sir, that many of the people of that great State, with 


a 


whom I hold so much in common, on whose soil my father fought by 
the side of Jackson, may misconstrue my motives and misunderstand 
my action, but they are too brave, too generous, too true, to do will- 
ing injustice to an enemy, much less toa friend. I have an abiding 
faith in their sense of right. 

The distinguished Senator from Alabama, who so ably advocated 
the adoption of the resolutions of the committee, hoped that no Sen- 
ator who saw the right would “still the wrong pursue.” He did not, 
I am sure, intend to cast any reflection upon those of us who are so 
unfortunate as to differ with the committee. His high character gives 
full assurance that he would be the last man to do so, but he can 
readily see how easily his meaning might be perverted. We who do 
not agree with the majority of our party associates cannot surely be. 
open to the charge of acting in violation of our convictions, for we 
ave the very highest proof of our sincerity by following these in 

irect opposition to all our wishes, all our feelings, and in spite of 
the strongest temptations that political considerations could possibly 
hold out to allure us from the path to which we conceive that our 
duty points us. We give by our action the highest assurance that 
we pursue the right as we see it, and we know that our associates 
with whom we do not agree do the same. 

This, Mr. President, is, as I have said, no mere party question; it 
rises far higher than any such can ever reach; it involves issues 
which touch closely every State in this Union, issues which cannot 
be solved upon political considerations or upon sectional lines. 

The flag that now floats from the dome above us is bright with its 
galaxy of stars, each radiant star representing a great State, while 
the banner upon whose azure folds they shine symbolizes not the 
power alone but the unity of the people of the great Republic. Each 
of us on this floor represents in part one State of this mighty Union, 
but we must never forget that we are Senators of the United States, 
representing all of these States in their highest legislative tribunal. 
We stand here, too, on common ground and upon terms of perfect 
equality. Upon this latter point some of our friends on the opposite 
side of the Chamber seem to entertain doubts, if we are to judge 
from the language they sometimes indulge in, for that would seem to 
imply that they regard us of the South as here only on probation. I 
beg them to they their minds of this delusion, if they cherish it, 








for the sooner o so the sooner shall we see here the courtesy 
riety that should always mark our proceedings, and the 
the whole country. : 

our titles under the g2eat seals of our respest2 
ive States, a 8 not become Senators to question our rights or 
to express doubts as to our motives or our fidelity to the laws and 
the Constitution. We do not think it at all necessary that we should 
make loud and constant professions of that fidelity ; we prefer to be 
judged by our actions. These, whether wise or unwise, will, I am 
firmly convinced, be dictated by a sense of duty, and no higher mo- 
tive can inspire human conduct. One of the ablest and most distin- 
guished statesmen to whom Sonth Carolina has given birth—and of 
these she has been prolific—gave utterance on one occasion to a sen- 
timent worthy to be inscribed in letters of gold on the walls of this 
Chamber, which in former days he illustrated by his learning, his 
genius, and his eloquence. No nobler principle of action was ever 
enunciated, no grander exhortation to cling to the right was ever 
uttered than were expressed in his simple words, “‘ Do your duty, and 
leave the consequences to God.” I have tried, sir, to do mine, and it 


aE 


8 


needed not the extraordinary exhortation nor the solemn admonition 
with which the distinguished Senator from Georgia [ Mr. HILL] closed 
his address to induce me to do so. I thank him for denouncing as 
Slanderous the whispering “ which seeks to soil the character of the 
most highly honored State in this Union in the days of the past.” 
I thank him for the deep solicitude he manifests for the honor of 
South Carolina and that of her Senators, and I assure him that the 
honor of my State is as dear to me as my own. It has been the earn- 
est effort of my life to maintain it unsullied in and in war. I 
have followed her palmetto flag on bloody fields that were “ shot- 
sown and bladed thick with steel,” when that standard floated far 
to the front side by side with the colors of Georgia, borne by the 
knightly colleague [Mr. GorDoN] of the Senator from rgia—that 
man who, tested on field and in foram, bas never been A 
Those interlocked colors of the sister States led then where honor 
could be gained but personal safety could not be found. 

If in those dark days when it was not my good fortune to enjoy 
what I now do, the benefit of the precepts and the example of 
Senator from Georgia, [Mr. Hrtt,] I upheld as best I the honor 
of my State, I trust that I shall not prove recreant to it now. The 

eople of South Carolina can best judge how their honor is guarded 
ban, and should it ever be my misfortune to misrepresent or ——- 
point them in any way by having the courage to follow my conyvic- 
tions, they will at least say : ‘ 


He braved the shafts of censure and of shame, 4 
~ And, dearer far than life, be pledged a soldier's fame. 
a 
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‘ iF 
P jes 





